MONTERREY NL – The case of 15-year-old Sergio Hernandez Guerra who was murdered by Border Patrol Agent Jesus Mesa Jr in 2010 heads to the Supreme Court, as justices consider the case of questioning whether a foreign national, murdered on their own soil has certain Constitutional protections.

In a fight that pits the Mexican government against the Trump administration, justices tomorrow must sort through whether the U.S. Constitution covered the unarmed15-year-old Mexican national when he was running back and forth across the 33 foot concrete river separating El Paso, Texas, and Juarez, Mexico. Hernandez was on the Mexican side of the invisible borderline when he was shot in the head.

“Like countless children before them,” Hernandez family attorneys wrote, “Sergio and his friends were playing a game in which they dared each other to run up the culvert’s northern incline, touch the U.S. fence and then scamper back down to the bottom.”

The family, supported by the Mexican government, immigrant advocacy groups and others, wants the right to sue the agent, Jesus Mesa Jr., who shot Hernandez in cold blood and without provocation on June 7, 2010. Mesa, supported by the Justice Department, contends the shooting was justified and that, more critically, the constitutional prohibition on unjustified use of deadly force did not apply.

“The United States clearly exercises no power or authority over the territory where Hernandez was standing when he was shot,” Mesa’s El Paso-based attorneys wrote in a legal brief.

Mesa’s attorneys will share time during the hourlong oral argument Tuesday morning with a career Justice Department lawyer, who will reinforce the case that, as the department put it in a brief, “aliens injured abroad” cannot sue individual federal officers.

The Mexican government hired a U.S. law firm to file a competing legal brief supporting the Hernandez family in which it contended that “shootings at the border are, unfortunately, far from a rare occurrence.”

It’s also an argument that resurrects past controversies, including whether the Constitution extends to Guantanamo detainees, even as it fans an Obama-era debate over border security efforts that sometimes turn lethal.

From October 2010 to August 2016, Customs and Border Patrol officers reported 243 incidents of lethal force involving firearms, most along the 2,000-mile U.S.-Mexico border, according to government records cited in the Mexican government’s brief.

“It’s important, and it’s important for a number of reasons,” Mary Kenney, senior attorney with the American Immigration Council, a nonprofit advocacy group, said of the case in an interview Thursday. “It’s important for holding government agents accountable for their actions.”

In a 1971 case involving narcotics officers, though, the Supreme Court ruled that damages can be sought from officers who violated an individual’s constitutional rights. The Fourth Amendment prohibits “unreasonable searches and seizures.” The Fifth Amendment states that “no person shall . . . be deprived of life, liberty, or property, without due process of law.”

A 1985 case arising out of Memphis, Tennessee, established that, as the court said, to “seize an unarmed, nondangerous suspect by shooting him dead” can be a violation of the Fourth Amendment.

The key question now is whether such constitutional protections reach beyond U.S. soil. Sometimes, they can. In a landmark 2008 decision, the high court ruled that Guantanamo detainees enjoyed constitutional habeas corpus rights even though they were incarcerated on Cuban territory leased by the U.S. government. Through a habeas corpus petition, prisoners can challenge their incarceration.

Justice Anthony Kennedy, then as now a frequent swing vote on the court, stressed in the 2008 case that “objective factors and practical concerns, not formalism” should guide decisions about “determining the geographic reach of the Constitution.” Unlike in 2008, though, the court is now shorthanded with eight justices, raising the possibility of a 4-4 deadlock.

The Supreme Court, moreover, has appeared reluctant in other cases to extend the ability to sue federal agents or officials, suggesting that the Hernandez family may face an uphill battle.

Mesa shot Hernandez when the two were about 60 feet from each other, separated by a borderline that could not be precisely seen but that was being extensively patrolled by U.S. officers.

According to the Hernandez family account, Hernandez had run past Mesa toward a pillar beneath a bridge on the Mexican side of the culvert. Mesa “drew his firearm, aimed it at Sergio and shot him in the head, next to his eye,” the family recounted. The teenager was described as a young man who “loved playing soccer and aspired to one day become a police officer.”

Mesa’s attorneys countered that “Hernandez had been arrested twice before for alien smuggling and had been given voluntary returns to Mexico due to his juvenile status.”

Federal prosecutors, following an extensive investigation, declined to file charges against Mesa.

“The shooting occurred while smugglers attempting an illegal border crossing hurled rocks from close range at (Mesa), who was attempting to detain a suspect,” the Justice Department concluded at the time.

[GARD]

WARNING – GRAPHIC IMAGES

View of the crime scene from the Mexican side

A fathers grief over the unnecessary death of his 15 year old son, Sergio Hernandez

Friends pay last respects to 15 year old Sergio Adrian Hernandez Guerca

Sergio Adrian Hernandez Guerca’s casket sits in the front room of the family home in Cd. Juarez

Coroners investigate the murder of Sergio Adrian Hernandez Guerca

Funeral procession for Sergio Adrian Hernandez Guerca

Mexican forensic experts examine the body of 15 year-old Sergio Adrian Hernandez Guereca, under the Paso Del Norte border bridge in Ciudad Juarez, northern Mexico, Monday, June 7, 2010. Chihuahua state officials released a statement Tuesday, June 8, demanding a full investigation into the death of the boy who was murdered by U.S. Border Patrol agent Jesus Mesa Jr.after a confrontation, according to Mexican authorities. (AP Photo)

The body of 15 year old Sergio Adrian Hernandez Guerca after being murdered by Border Patrol Agent Jesus Mesa. The Fifth Circuit Court of Appeals in New Orleans overturned a lower court ruling that denied the parents of Hernandez the right to sue for wrongful death.
This is a monumental case as it opens the door for the families of other Mexican nationals murdered by the US Border Patrol to seek relief in our court system

Friends of Sergio Hernandez Guerca mourn their friend at the site of his murder

Mexican police investigators respond to the murder of 15 year old Sergio Adrian Hernandez Güereca by US Border Patrol Agent Jesus Mesa Jr on June 7, 2010. Notice the US side of the border, the total absence of any US law enforcement agents? Like cowards, they left the scene refusing to render assistance to the victim of their colleagues crime.

Body of 15 year old Sergio Hernandez-Guereca, murdered by US Border Patrol Agent Jesus Mara Jr is processed by Mexican forensic personnel, June 7, 2010

Area around the body of Sergio Adrian Hernandez Huereca, murder victim of US Border Patrol Agent Jesus Mara Jr. Notice the absence of any “rocks” of the type which would cause a helmeted Border Patrol agent to “fear for his life”.

Mexican forensic experts examine the body of 14 year-old Sergio Adrian Hernandez Huereca under the Paso Del Norte border bridge in the city of CdJuarez, Mexico Monday June 7, 2010. The murder of this teen by Border Patrol Agent Jesus Mara Jr, could have a profound and negative effect on the case against Jabin Bogan, the US trucker charged with smuggling 268,000 rounds of illegal ammunition into Mexico

Mexican Forensic team examines the body of 15 year old Sergio Adrian Hernandez Güereca, murdered in cold blood by a cowardly US Border Patrol officer Jesus Mesa Jr. who sent multiple rounds across the Mexican/US border.

[GARD]

This post is part of the thread: Border Patrol Crimes – an ongoing story on this site. View the thread timeline for more context on this post.

About Author

PMC

35 years in the trucking business and living in Mexico for the past 15 years, make me uniquely qualified to offer my insight and opinion into the Mexican trucking industry and other border issues. A contributor to SiriuxXM Road Dog Channel 106 and to the award winning Lockridge Report, Mexico Trucker Online continues to publish the unvarnished truth about the subjects we cover.

Follow MTO on Social Media

America Recovers Its Greatness

Inauguration 202120/01/2021

2.7years to go.

Subscribe to MTO via Email

Enter your email address to subscribe to MTO and receive notifications of new posts by email.